Published on 03/04/2017, 6:10pmAn Indian state has awarded full legal status to an entire ecosystem. But can such a right be protected?The
Bhagirathi River where it flows through Gangotri, Uttarakhand. The
Indian state's high court has just issued the river, the glaciers that
feed it, its wellsprings and the entire ecosystem the legal rights of a
person. (Photo: Atarax42)By Omair AhmadExpanding
on a previous judgment in which it recognised the Ganga and Yamuna
rivers as legal entities, the High Court of the Indian state of
Uttarakhand now grants legal rights to the ecosystem.In a broad ruling on March 30, 2017, the High Court of the Indian state of Uttarakhand stated:We,
by invoking our parens patriae jurisdiction, declare glaciers including
Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air,
meadows, dales, jungles, forests wetlands, grasslands, springs and
waterfalls, legal entity/ legal person/juristic person/juridicial
person/ moral person/artificial person having the status of a legal
person, with all corresponding rights, duties and liabilities of a
living person, in order to preserve and conserve them. They are also
accorded the rights akin to fundamental rights/ legal rights.This
followed from an order on March 20, 2017 – startling in itself – in
which the Uttarakhand HC had declared the Ganga (Ganges) and Yamuna
rivers as legal entities based on the fact that they are considered
sacred to Hindus. Based on that order, a group of citizens had
petitioned the court that the “Himalayas, Glaciers, Streams, Water
Bodies etc. [be declared] as legal entities as juristic persons at par
with pious rivers Ganga and Yamuna.”A much more comprehensive orderThe
earlier order, 12 pages in length, dealt primarily on whether the state
of Uttarakhand had the powers, under a federal constitution, to direct
the central government (according to the order, it did) and whether
rivers, as sacred entities, could be considered legal entities under
Indian law.This second order, 66 pages in length, is
focussed on the ideas of parens patriae as a juridical concept for the
states within a federal structure defending their environment, and
cites, in a comprehensive manner the idea that nature has rights. The
judgement spends six pages citing quotations from a book, “Secret Abode
of Fireflies: Loving and Losing Spaces of Nature in the City”, which the
judges have quoted from before in a case involving forest fires and
forest management.There is a chapter on the rights of
nature by Vikram Soni & Sanjay Parikh that the judgment cites at
length, then goes on to detail the special flora and fauna, including
endangered species found in the Hindu Kush Himalayan region.The
judgment then goes on to quote, in full, two important UN declarations
that form the bedrock of international environmental agreement, namely
the 1972 Stockholm declaration and the 1992 Rio Declarations. It also
quotes the Convention on International Trade in Endangered Species of
Wild Fauna and Flora, signed in 1973, as well as the Bali Action Plan,
formulated in 2007.The judgment acknowledges the
passage of the “‘Te Urewera Act 2014’ whereby the ‘Urewera National
Park’ has been given the legal entity under Section 11 of the Act,”
while building up to the argument that, “The Courts are duty bound to
protect the environmental ecology under the ‘New Environment Justice
Jurisprudence’ and also under the principles of parens patriae.”The
judgment then spends another 15 pages quoting American jurisprudence on
the use of parens patriae – the guardianship of the state of the rights
of entities that are unable to fight for their own rights – by states
within a federal structure, to assert their rights when their rivers
have been polluted, or diverted, or their environment has been otherwise
harmed. There is no reference to the use of such law within India.Precedence in legislation, Ecuador Constitution, and lawIn
some ways it seems that the Uttarakhand HC is anticipating the way that
the role of environmental practice is going. Just as human rights
expanded from “civilised people” to all humans, and then came the
movement to abolish slavery, women’s suffrage, give rights to animals,
the process towards whole ecosystem rights seems well underway.In
its judgments the Uttarakhand HC emphasised more than once that the
river was a living entity, and dependent on glaciers, waterfalls and
other natural aspects. It would be impossible to protect one aspect
without protecting the whole.Nor would India be the
first country to extend these rights. While New Zealand passed
legislation only recently giving legal rights to the Whanganui river
ecosystem, Ecuador had already given legal rights to nature in its
Constitution adopted in 2008.In fact the first
enunciation of such legal rights of nature happened in thefamous Sierra
Club v. Morton case of 1972, in the US (which the Uttarakhand HC does
not cite). While the judgment went against the Sierra Club, in his
famous dissent US Supreme Court Justice William Douglas stated:Contemporary
public concern for protecting nature’s ecological equilibrium should
lead to the conferral of standing upon environmental objects to sue for
their own preservation…Inanimate objects are sometimes
parties in litigation. A ship has a legal personality, a fiction found
useful for maritime purposes. The corporation sole – a creature of
ecclesiastical law – is an acceptable adversary, and large fortunes ride
on its cases. The ordinary corporation is a “person” for purposes of
the adjudicatory processes, whether it represents proprietary,
spiritual, aesthetic, or charitable causes.So it
should be as respects valleys, alpine meadows, rivers, lakes, estuaries,
beaches, ridges, groves of trees, swampland, or even air that feels the
destructive pressures of modern technology and modern life. The river,
for example, is the living symbol of all the life it sustains or
nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer,
elk, bear, and all other animals, including man, who are dependent on it
or who enjoy it for its sight, its sound, or its life. The river as
plaintiff speaks for the ecological unit of life that is part of it.
Those people who have a meaningful relation to that body of water –
whether it be a fisherman, a canoeist, a zoologist, or a logger – must
be able to speak for the values which the river represents, and which
are threatened with destruction.Many lacunaeUnfortunately the dissent by Justice Douglas is only one of the things that the Uttarakhand HC judgment overlooks.The
first is the example of what has happened in cases where rights have
been thus granted. In Ecuador, while there have been some small
victories under the new constitution, there have been many more
failures, including development in areas that would lead to extinction
of species. Even when nature’s rights are embedded in the constitution
it seems that states will overlook them, or interpret them flexibly, in
the case of economic development.The second gap is the
way that the application of parens patriae has turned out in practice
in India. In the most (in)famous such case, of the Bhopal Gas Tragedy in
1984, which led to thousands dead, and many more than that injured, and
land contaminated, the Indian government forcibly inserted itself using
the parens patriae clause. This was a “disaster” for the case, one
anticipated as early as 1988, and with continued failure.In
its wisdom the Uttarakhand HC has declared certain people in charge of
protecting the new rights granted to ecosystem. Given the experience of
Bhopal, it is legitimate to ask why the government will perform better
in this case than before.Who, precisely, will be prosecuted?More
troubling, though, is the question of who will be acted against when
the “rights” of these entities are compromised. The judgment mentions
that the glaciers are receding, including due to global warming. Will
the officers then place cases against those contributing CO2 or other
greenhouse gasses to the atmosphere? The fear is that the government and
its officers are more likely to act against the poor and marginalised.As
Prakash Kashwan notes in his book, Democracy in the Woods:
Environmental Conservation and Social Justice in India, Tanzania, and
Mexico, India developed strong forestry laws primarily during the
colonial period which deprived forest dwellers of their lands and
rights. This has continued in post-independence India.The
judgment tries to balance this by giving the chief secretary of
Uttarakhand the ability to co-opt, “seven public representatives from
all the cities, towns and villages of the State of Uttarakhand to give
representation to the communities living on the banks of rivers near
lakes and glaciers”. Going by the history of environmental action that
Kashwan documents, these are likely to be privileged groups, not those
already marginalised.It does not help that the
judgment includes the directive, “The District Magistrate, Haridwar is
directed to ensure that the Beggars are not allowed to be present on the
Ghats.” Is it only the poor that will be prosecuted?Lastly,
the judgment, like the one that preceded it, does not clarify anything
about what exactly is to be “preserved”. Will dams be removed,
irrigation systems dug up? Will the ambitious river interlinking project
of the central government be opposed, since so many experts have
pointed out that it is catastrophic to the health of the rivers?The
order is so broad as to encompass everything, “Plucking of one leaf,
grass blade also damages the environment universally.” This is a recipe
for confusion, not clarification, and confusion is of no real help to
the environment.This article was originally published on The Third Pole.http://www.climatechangenews.com/2017/04/03/indian-court-awards-legal-rights-person-nature/Nature as a legal person